Questions & Answers Series

Constitutional Law Topics: Congressional Power - Commerce Clause; Free Speech - Political Speech; State Action - General Principles; Takings

Takings

Question:
The small Village of Brainia is home to Groton College. The College recently installed equipment that provided wireless Internet access throughout the campus. Students with an appropriately-equipped laptop computer can access the Internet and e-mail without a cable or other physical connection. The College wants to extend wireless Internet access to businesses that border the campus. When approached by the College, however, some local businesses resisted installation of the necessary equipment. In response, the Village passed an ordinance requiring all public accommodations located within one mile of the Groton College Campus to allow College officials to enter the premises to install and maintain equipment necessary for wireless Internet access. It is undisputed that such equipment will not interfere with the operation of any businesses affected by the Ordinance. Further, the availability of wireless Internet access would likely increase patronage at many of the businesses.

Does the Village Ordinance take private property?

(A) No, because the Ordinance may increase the value of the regulated property.

(B) No, because the Ordinance does not defeat the investment-backed expectations of the regulated property owners.

(C) Yes, because the Ordinance allows a third party to physically invade the regulated property.

(D) Yes, because the Ordinance is not rationally related to a legitimate government interest.

Answer:
Answer (C) is the best answer. In Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), the Supreme Court held that the government takes private property when it forces a private land owner to suffer a forced physical invasion of her land by a third party. There, a New York City ordinance required apartment building owners to allow a private cable company to install cable wires and a small box necessary to provide cable service to the building's residents. Here, the Brainia Ordinance forces a similar invasion. Specifically, the Village requires access for officials from a private a college to install equipment necessary for wireless Internet access. As in Loretto, this forced physical invasion by a third party is a per se taking.

Answers (A) and (B) are incorrect because a forced physical invasion is a per se taking, regardless of the regulation's effect on either the property's value or the owner's expectations.

Answer (D) is incorrect because Loretto established a per se rule for physical invasions, making the invasion a taking regardless of the government's asserted purpose.

Free Speech - Political Speech

Question:
Last year, the State of West Dakota experienced the most expensive campaign for Governor in its history. By the end, the reputation of both candidates had been heavily tarred by their perceived link to campaign contributors. To restore faith in the state's chief executive, the state legislature recently enacted one of the nation's strictest campaign finance laws. The law prohibits any individual or organization from making a contribution directly to a candidate for Governor over the amount of $50. The law also places a $1,000 limit on independent expenditures by individuals. The legislative history explains that these limits are needed to eliminate both actual and apparent corruption of the state's top law enforcement officer. The legislative history relies on public news accounts and newspaper editorials expressing outrage over contributions made during the last Governor's race.

Is the $1,000 independent expenditure limit constitutional?

Answer:
Expenditure limitations receive higher judicial scrutiny than contribution limitations because they are considered a greater burden on a person's right to speak in favor of their preferred candidate. Buckley v. Valeo, 424 U.S. 1 (1976). The Court has consistently struck down such expenditure limits on individuals, Buckley, political action committees, FEC v. National Conservative PAC, 470 U.S. 480 (1985), and political parties, Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604 (1996). In each case, the Court held that truly independent expenditures (i.e., expenditures not coordinated with the candidate or her campaign) do not pose a sufficient risk of corruption or its appearance to justify limits. Thus, in each of those cases, the Court struck down a contribution limit of the same size as in this case - $1,000. Therefore, West Dakota's independent expenditure limitation is unconstitutional.

The Court's decision in McConnell v. Federal Election Commission, 124 S. Ct. 619 (2003), reaffirmed and applied the Buckley v. Valeo, 424 U.S. 1 (1976), approach to regulations of campaign finance. The heart of this approach is the distinction between campaign contributions and expenditures. On the one hand, contribution limits are constitutional so long as they are "closely drawn" to a "sufficiently important interest." McConnell, 124 S. Ct. at 656. Further, "the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits." Id. at 660. On the other hand, spending limits receive "closer scrutiny than limits on campaign contributions." Id. at 655. 

State Action - General Principles

Question:
Explain why private entities such as restaurants, hotels, and private employers are forbidden by law to discriminate on the basis of race when, on its face, the Fourteenth Amendment only prohibits state action. 

Answer:
Congress has enacted legislation under various provisions of the Constitution such as the Commerce Clause and Section 5 of the Fourteenth Amendment that prohibit by statute discrimination by private individuals. For example, the Civil Rights Act of 1964 prohibits discrimination by private employers and places of public accommodation (such as restaurants and hotels) on the basis of race, sex, etc. Such statutes reach private action even though the Fourteenth Amendment only prohibits state action. The important point is to distinguish between constitutional and statutory prohibitions.

Congressional Power - Commerce Clause

Question:
Congress recently passed a federal statute that prohibits smoking any tobacco product on a commercial airplane flight between two United States cities. The smoking ban was inserted as a rider to an unrelated spending bill and was not intended to supplement or complement any other existing federal statute.

Is the smoking ban within Congress' power under the Commerce Clause?

(A) No, because smoking is not an economic activity or an essential part of a larger economic activity.

(B) Yes, because purchasing an airline ticket is an economic activity.

(C) Yes, because smoking on airplanes, in the aggregate, substantially affects interstate commerce.

(D) Yes, because an airplane is an instrumentality within the channels of interstate commerce.

Answer:
Answer (D) is the best answer. In United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court explained that three categories of laws come within Congress' Commerce Clause power: (1) laws regulating the channels of interstate commerce; (2) laws regulating instrumentalities that travel or work in the channels of interstate commerce, and (3) laws regulating an economic activity (or a non-economic activity that is an essential part of a larger economic activity) that has a substantial aggregate effect on interstate commerce. This statute falls within Lopez' second category: laws that regulate instrumentalities of interstate commerce. Lopez explained that “instrumentalities” of interstate commerce included people or things that operate or travel in the channels of interstate commerce. The Court cited Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), as an example of a case dealing with the instrumentalities of interstate commerce. In Heart of Atlanta Motel, Congress had proscribed racial discrimination in public accommodations such as hotels along the interstate highway system. The national roadways are channels of interstate commerce, and the hotels and their employees are instrumentalities that serve that channel. Thus, the law regulated instrumentalities of interstate commerce. The same is true of the federal law described in this Question. The nation's airplane routes are channels of interstate commerce, and the airplanes and passengers traveling in those routes are instrumentalities within the channels. By prohibiting smoking during a flight, the law validly regulates the activities of people traveling in the channels of interstate commerce.

Answer (A) is incorrect because it is incomplete. Answer (A) focuses only on the third category. (Application of the third category is discussed further below in the discussion of answer (B).) Even if a federal law does not come within the third category, it is still constitutional if it comes within one of the other two categories. Answer (A) is incorrect because it mistakenly assumes that a federal law is unconstitutional because it fails to come within one of the three Lopez categories.

Answer (B) is incorrect because it incorrectly applies the third category. That category only applies to laws where the regulated conduct itself is an economic activity. For example, in Lopez the regulated activity was gun possession in a school zone. Of course, nearby operation of a school was a necessary circumstance of the crime, and operating a school might be an economic activity. But, Lopez' third category is not that broad; it focuses on the regulated activity itself, and not the activity’s surrounding circumstances. Here, the regulated conduct is smoking on an airplane, and the purchase of an airplane ticket is simply a surrounding circumstance of that activity. So, while purchasing an airplane ticket is an economic activity, it is not the regulated activity and thus does not satisfy the third Lopez category.

Answer (C) is incorrect because it misapplies the substantial effects test. In Wickard v. Filburn, 317 U.S. 111 (1942), the Supreme Court held that Congress may aggregate all instances of the regulated conduct in determining whether the conduct substantially affects interstate commerce. There, while a single farmer who grew surplus wheat for his own use did not substantially affect the national wheat market, the aggregate affect of all farmers who did so was substantial. In United States v. Morrison, 529 U.S. 598 (2000), the Court explained that Wickard's aggregation test only applies to regulated conduct that is either an economic activity or a non-economic activity that is an essential part of a larger economic activity. For example, the regulated activity in Morrison was gender-motivated violence. The Court would not aggregate the effects of such violence on the national economy because the targeted criminal conduct was not an economic activity and was not part of a larger economic activity Congress was regulating. Here, we have the same result: the regulated activity (smoking) is not economic, and the smoking is not part of a larger economic activity that Congress is trying to regulate. (Of course, the answer might change if we learned that the smoking ban was part of a larger regulation of the health and safety of flight attendants' working conditions.) Thus, its effects cannot be aggregated to meet the substantial effects requirement. Answer (C) is incorrect because it mistakenly asserts that we may aggregate the effects of such conduct on interstate commerce.